The Fog of Certainty

A Response To

In The Constitutional Power To Interpret International Law, Michael Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, international law is “policy and politics.” For all the certainty with which his argument is advanced, however, it cannot survive close scrutiny. At its foundation, Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.

Paulsen insists, to the contrary, that international law is not law, because Congress, the President, and the courts can displace it. Yet what distinguishes binding law from discretionary policy cannot possibly be that it may not be undone. Were that true, little if anything would be law. The distinguishing characteristic, instead, is that the displacement of law requires some substantive standard to be met and some prescribed process followed.

Professor Paulsen’s misconception about the sources of law, in turn, arises from his unwillingness to analyze international law as anything more than a subset of U.S. law. International law may have force—and even be “binding”—entirely apart from its status as domestic law. This would not be true were the Constitution to be understood not simply as failing to give force to international law in certain cases, but as affirmatively negating the possibility that international law could exert such force. Yet this would imply a further misunderstanding—one of the Constitution itself.

I do not mean to suggest that legal scholars should limit themselves to a doctrinal approach to the Court, in which the Constitution, international law, and law generally are simply what the Court says they are. But as scholars trying to find, rather than promote, answers, we do well to be careful in our picking and choosing. A close vote is a close vote, whether it is for me or against me. Likewise, a binding decision is final regardless of whether it supports or contradicts my proposition. If Sanchez-Llamas v. Oregon and Medellín v. Texastell us something important about the subject at hand, then so do The Paquete Habana,Charming Betsy,Dames & Moore,Garamendi,Hamdan,Boumediene, and other decisions, all of which Professor Paulsen is too quick—and determined—to dismiss. One cannot claim to offer a positive account of constitutional practice, ultimately, if one insists on ignoring actual constitutional practice.

No claim of exclusivity or equivalence need follow. Certain “laws” may enjoy a political force equal to their legal force. The nature of their constraint, as such, may be both political and legal. The political implications of the repeal of domestic law, meanwhile, may well be greater—even far greater—than any rejection of international law. Yet this is not less true across divergent domestic settings: amendments to the U.S. Constitution are subject to far more stringent political oversight than are zoning variances in the City of New Haven. Both zoning rules and the Constitution remain legal constraints, however, no less than international law.

III. There Can Be Only One

That international law—like most law—can be displaced by subsequent domestic initiative, then, does not make it policy rather than law. Professor Paulsen’s assertion to the contrary, however, turns out to be even more problematic than the foregoing suggests. For even if we assume, arguendo, that international law is not law in any domestic sense, it would still be law.

Here we find the essay’s second misconception of the nature of law. This begins with Professor Paulsen’s embrace of an Austinian notion of law as limited to the coercive commands of a singular sovereign. Further, in Professor Paulsen’s account, a rule cannot be law for the United States, unless it is law of the United States. As above, however, these conclusions do not survive close scrutiny.

International law constitutes its own system of rules and processes, to which the United States may be obliged and held liable. Consider the case of the World Trade Organization (WTO), which Professor Paulsen assiduously avoids. The WTO is founded on a highly detailed set of rules, to which the United States has committed itself. Further, it offers a mechanism by which adherence to those rules can be tested, including trial-level proceedings and subsequent appellate review. At the end of this process, potentially costly sanctions can be—and have been—imposed on parties found to be out of compliance, including the United States.

This reading, however, erroneously equates a lack of constitutional provision for some constraint with that constraint being unconstitutional. That the Constitution allows Congress or the President to do something thus need not be understood as preventing some other regime from precluding that very conduct. And similarly, that the Constitution states that the President enjoys certain powers and is precluded from doing certain things is not the same thing as a statement that he or she must do those things or may do anything else he or she chooses. If it were, then nothing else—international law included—could limit the President’s powers. Or more precisely, no government official could—consistent with his or her constitutional obligations—embrace such a limitation. The Constitution, however, does not state anything of the sort.

I do not, to be clear, mean to suggest that the Constitution can never be understood to offer an exclusive statement of applicable law. The maxim of expressio unius est exclusio alterius, which teaches that the express mention of one or more things in a class excludes other things of that class, may support this result in some settings, as perhaps with the statement of necessary qualifications for service in Congress. Professor Paulsen fails to demonstrate, however, why this should be true as to the Constitution’s provision for Congress’s declaration of war and the President’s pursuit of it. Given the lack of any enumerated constitutional “qualifications” of those powers, in fact, one might plausibly favor just the opposite conclusion.

This is important, because it means that there is nothing to prevent the President and the Senate from agreeing to at least some international constraints on congressional or presidential power. Surely there is some limit to how far they might go down that path. Presumably, they could not agree to allow “faceless bureaucrats” in Geneva to dissolve the presidency at will. But such slippery-slope claims generate more heat than light. The question raised by Professor Paulsen’s essay is whether the President and the Senate may agree—as they did with the Geneva Conventions, the Convention Against Torture, and elsewhere—to limit the conduct of the President in his or her pursuit of congressionally authorized war. That the Constitution itself does not itself impose such limits, I would argue, does nothing to suggest that the political branches are constitutionally disabled from advancing the national interest in that way.

Conclusion

Professor Paulsen’s claim is not, to be clear, that international law functions differently—or enjoys some lesser stature—than domestic law. Nor does he simply suggest that international law stands on less stable political ground and is hence more susceptible to repeal. Each of these propositions might warrant support—even among the “clique” of international law scholars. The insight that Professor Paulsen hopes to advance, however, is rather more extreme. International law does not mean less than domestic law; at least as law, it means nothing. No authority beyond his own certainty in this proposition, however—be it the Constitution, Supreme Court precedent, congressional legislation, or executive decree—can get him there. As Professor Paulsen points out, there is a fog—but it is not in international law.

Robert Ahdieh is the Professor of Law & Director, Center on Federalism & Intersystemic Governance, Emory University School of Law. A.B., 1994, Princeton University; J.D., 1997, Yale Law School.

I am grateful to David Bederman, Jeff Dunoff, David Fontana, Philip Hamburger, Robert Schapiro, Peter Spiro, Carlos Vazquez, and the editors of The Yale Law Journal Online, for their helpful counsel and assistance with this piece. Needless to say, however, the conclusions offered are mine alone.